SUPREME COURT

Retired justice revisits Fla. beach protection case

Lawrence Hurley, E&E reporter

Greenwire: Thursday, October 4, 2012

Retired Supreme Court Justice John Paul Stevens has criticized some of his former colleagues on the court for their handling of a recent property rights case concerning Florida's attempts to restore and protect its beaches.

The legal question in Stop the Beach Renourishment v. Florida Department of Environmental Protection was whether the Florida Supreme Court had effectively seized property, in violation of the takings clause of the Fifth Amendment, when it ruled that the state program did not violate property rights.

Under the plan, the state wanted to expand the beach in front of privately owned houses in order to create a state-owned public area.

In the 2010 decision, the court ended up ruling 8-0 that there was no "judicial taking" in that instance. But four of the justices, led by Antonin Scalia, signed onto the idea that there is such a thing as a judicial taking were a court to deprive a property owner of an established right to a particular property.

Stevens, who retired from the court at the end of the 2010 term, had recused himself from the case because his wife owns a beachfront condominium in Fort Lauderdale, Fla. But in a speech yesterday at Chicago-Kent College of Law, he finally had his say on the issue.

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He questioned Scalia's approach, saying the court had no reason to even discuss the judicial takings question.

Stevens said he would have "tried to persuade" the other justices to dismiss the case "because there was no justification for using it as a vehicle for discussing the subject of judicial takings."

Among the problems Stevens had with Scalia's theory is the notion that it would have been the Florida court that was responsible for the taking of property.

If there was a taking, it occurred when the Florida Legislature passed the statute allowing for the beach renourishment programs to take place, Stevens said.

Ultimately, "there was no need for the court to fashion a new rule of federal law" for judicial takings, Stevens concluded.

Ilya Somin, a professor at the George Mason University School of Law who supports property rights, described the speech as "interesting, but mostly unpersuasive," in part because Stevens seemed to be suggesting that the takings clause does not apply to the states.

"This would go against decades of Supreme Court precedent," he added.

John Echeverria, a Vermont Law School professor opposed to the judicial takings argument, said Stevens' unofficial "ninth vote" in the case "improves the odds that the judicial takings doctrine will never command majority support on the court."

Yesterday's speech is the second time Stevens, who is 92, has addressed the issue of property rights in the past year. In a speech at the University of Alabama Law School, he defended the court's 2005 ruling in Kelo v. City of New London, in which the court held that government officials could use the power of eminent domain for economic development projects primarily intended to increase tax revenues.

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